of justice. But it is said that the captor takes cum onere, and, therefore, that this obligation would devolve upon him. That he is held to take cum onere is undoubtedly true, as a rule which is to be understood to apply where the onus is immediately and visibly incumbent upon it. A captor who takes the cargo of an enemy on board the ship of a friend, takes it liable to the freight due to the owner of the ship; because the owner of the ship has the cargo in his possession, subject to that demand by the general law, independent of all contract. * * * But it is a proposition of a much wider extent, which affirms that a mere right of action is entitled to the same favorable consideration in its transfer from a neutral to a captor. It is very obvious that claims of such a nature may be so framed as that no powers belonging to this court can enable it to examine them with effect. They are private contracts, passing between parties who may have an interest in colluding; the captor has no access whatever to the original private understanding of the parties in forming such contracts; and it is, therefore, unfit that he should be affected by them. His rights of capture act upon the property, without regard to secret liens possessed by third parties. * I am of opinion that there is no instance in which the court has recognized bonds of this kind as titles of property, and that they are not entitled to be recognized as such in the prize courts."

In The Marianna, the vessel had been sold at Buenos Ayres by American owners to a Spanish merchant; the purchase money, however, had not been paid in full, but was to be satisfied out of the proceeds of a quantity of tallow on board the vessel for sale, consigned to the agents of the American vendors at London. The vessel was seized on her voyage to England, documented as belonging to a Spanish merchant, and sailing under the flag and pass of Spain. The former American proprietors made claim to the cargo, but the claim was disallowed because the claimants' interest was not sufficient to support it; and the court said:

"Captors are supposed to lay their hands on the gross tangible property, on which there may be many just claims outstanding, between other parties, which can have no operation as to them. If such a rule did not exist, it would be quite impossible for captors to know upon what grounds they were proceeding to make any seizure. The fairest and most credible documents, declaring the property to belong to the enemy, would only serve to mislead them, if such documents were liable to be overruled by liens which could not in any manner come to their knowledge. It would be equally impossible for the court, which has to decide upon the question of property, to admit such considerations. The doctrine of liens depends very much on the particular rules of jurisprudence which prevail in different countries. To decide judicially on such claims, would require of the court a perfect knowledge of the law of covenant, and the application of that law in all countries, under all the diversities in which that law exists. From necessity, there

* * *

fore, the court would be obliged to shut the door against such discussions and to decide on the simple title of property, with scarcely any exceptions. As to the title of property in the goods, which are said to have been going as the funds out of which the payment for the ship was to have been made. That they were going for the payment of a debt will not alter the property; there must be something more. Even if bills of lading are delivered, that circumstance will not be sufficient, unless accompanied with an understanding that he who holds the bill of lading is to bear the risk of the goods as to the voyage, and as to the market to which they are consigned; otherwise, though the security may avail pro tanto, it cannot be held to work any change in the property."

These cases were cited by Dr. Lushington in The Ida as settling the law. In that case, claim was made by a neutral merchant to a cargo of coffee which had been consigned to him by an enemy on the credit of certain advances, as security for payment of which bills of lading covering the cargo had been delivered to him. But the court declined to recognize the lien, and condemned the cargo as enemy property. Dr. Lushington referred to The San Jose Indiano and Cargo, 2 Gall. 267, Fed. Cas. No. 12,322, and subscribed to what was there said by Mr. Justice Story, but thought his remarks inapplicable to the case in hand.

The case referred to was affirmed by this court. 1 Wheat. 208. Goods were shipped by Dyson, Brothers & Co. of Liverpool on board a neutral ship bound to Rio de Janeiro, which was captured and brought into the United States for adjudication. The invoice was headed: "Consigned to Messrs. Dyson, Brothers & Finnie, by order and for account of J. Lizaur." In a letter accompanying the bill of lading and invoice, Dyson, Brothers & Co. wrote Dyson, Brothers & Finnie: "For Mr. Lizaur we open an account in our books here, and debit him, etc. We cannot yet ascertain the proceeds of his hides, etc., but find his order for goods will far exceed the amount of these shipments, therefore we consign the whole to you, that you may come to a proper understanding with him." The two houses consisted of the same per

It was held that the goods were, during their transit, the property and at the risk of the enemy shippers, and therefore subject to condemnation. Lizaur's claim was rejected although Dyson, Brothers & Co. had the proceeds of his hides in their hands. * * We are of opinion that a valid transfer of title to this enemy property to claimants was not satisfactorily made out, and that

*

The decree below must be reversed, and a decree of condemnation directed to be entered, and it is so ordered.24

24 Part of the opinion of Mr. Chief Justice Fuller and the dissenting opinion of Mr. Shiras, in which Mr. Justice Brewer concurred are omitted.

"But the firm of Gehrckens further bases its claim upon the statement that as the result of expenditures incurred at the direction of the captain, it has acquired a lien upon the ship, the exercise of which is reserved to it in case

THE BARMBEK.

(French Prize Court, 1916. Journal Officiel, July 24, 1916, p. 6611.)

In the name of the French people, the Prize Court has rendered the following decision between:

On the one hand, the captain, owner, charterers, shippers and consignees of the cargo of the sailing vessel Barmbek, captured at sea on August 18, 1914, by the auxiliary cruiser Flandre;

And, on the other hand, the Minister of the Navy, acting on account of the captors and the fund for disabled sailors.

Considering the decision of the Prize Court under date of December 8, 1914, of which paragraph 4 reads as follows: "Judgment is suspended with regard to the return to the owners of the cargo of the sum deposited by them as representing the proportional part of the freight acquired by the vessel. Within the delay of two months beginning from the notification of the present decision the interested parties shall present to the Prize Court, by one of the modes indicated in articles 7 and 9 of the Decree of May 9, 1859, all documents in support of their claims. The Minister of the Navy shall furnish his statements within the month following the transmission to him of the aforementioned documents; at the expiration of this latter delay, final judgment shall be rendered;"

*

Having heard M. Paul Gauthier, member of the Court, in his report, and M. Chardenet, Commissioner of the Government, in his statements in support of the aforementioned motions:

THE COURT, after having duly deliberated thereon,

Whereas, the German sailing vessel, Barmbek, the capture of which was declared legal and valid by the decision of the Court under date. of December 8, 1914, * * *

Whereas, it is furthermore not in order to apply articles 296 and 303 of the Commercial Code prescribing that in case of interruption of the voyage by force majeure the shipper shall pay freight for the distance covered; whereas, in fact the Commercial Code has the object in the above-mentioned articles to regulate the commercial relations between shipowners on the one hand and shippers and freighters on the other hand;

Whereas, the provisions that it lays down concerning the execution or the consequences of the non-execution between parties of a contract of a private nature can not be extended to cover the consequences

of the seizure of the ship. However, the question need not now be raised as to whether the said firm has acquired a right in rem to the steamer on account of its expenditures or on account of any part thereof. For this lien would automatically become null in case of capture of the vessel. Capture under prize law is an original mode of acquisition, an occupatio iure belli which gives the occupant unencumbered ownership of the seized property, in accordance with generally recognized principles of international law." The Fenix (1914) Entscheidungen des Oberprisengerichts in Berlin, 1, 8, (1918).

of an act of war, such as the capture of a ship, in the relations of the belligerent state exercising its right of prize, and of the private shipowners of a captured vessel, or the shippers of its cargo.

Whereas, the capture of a vessel is an act of war, the legitimacy of which is recognized by the law of nations and the consequences of which must be judged according to the general principles of this law; and whereas, with regard to the acquisition of freight in proportion to the distance covered, the maritime powers have different systems of legislation; whereas, under these conditions, each national jurisdiction can refer only to the principles constantly admitted in the country to which it belongs;

Whereas, the British Prize Court has stated (case of The Roland, March 22, and 29, 1915) that "every other solution would necessitate * a close investigation of all the terms, conditions, and circumstances involved in the contractual obligations of the parties, and of their rights and liabilities under foreign municipal law, which this Court has always refused to undertake";

Whereas, likewise, it is not in order for the French Prize Court to apply the British laws and usages;

Whereas, this Court must admit freight for distance covered, as has been repeatedly sanctioned by French jurisprudence in matters of prize (see especially the decision of the Prize Court of November 25, 1870, case of The Julius; decree of November 2, 1871, case of The Vorsetzen; decree of December 13, 1871, case of The Alma);

Whereas, consequently, the interested parties are not justified in claiming reimbursement for the sums which they have deposited as representing the freight proportional to the distance covered by the goods which they have laden on the Barmbek;

Whereas, the claims for indemnity, presented by the interested par ties, are based on conditions under which the cargo had been stowed and should have been delivered according to the charter-party; whereas, they refer, therefore, to the execution of the contract which was made between the shippers and the shipowner and which, as has been stated above, could not bind the French State;

Whereas, consequently, these claims can not be sustained.

* *25

25 In The Prins der Nederlanden, L. R., [1921] 1 App. Cas. 754, 756, Lord Sumner, speaking for the Privy Council, said:

"The allowance of freight for the carriage of contraband is undoubtedly very rare. Two reported cases only have been found in which it has been ordered: The Brita Cæcilia, Hay & Marriott, 234 (1779), and The Neptunus, 3 C. Rob. 108 (1800)."

CHAPTER XIX

TERMINATION OF WAR

THE MENTOR.

(High Court of Admiralty, 1799. 1 C. Rob. 179.)

Sir W. SCOTT. * * * 1 The circumstances of the case, as far as it is necessary to state them, are these: The ship, being American property, was on a voyage from the Havana to Philadelphia [in 1783]; off the Delaware she was pursued by his Majesty's ships, the Centurion and the Vulture, then cruising off that river, under the command of the admiral on that station, Admiral Digby. All parties were in complete ignorance of the cessation of hostilities; not only the persons on board the King's ships, but the Americans, as well those on the shore, as those on board the vessel. In the pursuit, shots were fired on both sides, and, it is alleged on the part of the British, that the ship was set on fire by her own crew, who took to the shore.

Now, I incline to assent to Dr. Lawrence's position, that if an act of mischief was done by the King's officers, though through ignorance, in a place where no act of hostility ought to have been exercised, it does not necessarily follow that mere ignorance of that fact would protect the officers from civil responsibility. If by articles, a place or district was put under the King's peace, and an act of hostility was afterwards committed therein, the injured party might have a right to resort to a court of prize to show that he had been injured by this breach of the peace, and was entitled to compensation; and if the officer acted through ignorance, his own government must protect him: for it is the duty of governments, if they put a certain district within the King's peace, to take care that due notice shall be given to those persons by whose conduct that peace is to be maintained; and if no such notice has been given, nor due diligence used to give it, and a breach of the peace is committed through the ignorance of those persons, they are to be borne harmless, at the expense of that government whose duty it was to have given that notice.

I am, therefore, inclined to think that the determination of the judge in the former case did not turn upon the mere circumstance of ignorance on the part of the King's ships, but that looking at all the circumstances under which the event took place, and considering their just and legal effect, he was of opinion upon the whole result, that the protest on the part of the captors was well sustained. If that

1 The statement of facts and parts of the opinion are omitted.